The Irish District Court: A Social Portrait

Chapter 4 - Immigration Offences

114 Chapter 4 Immigration Offences Introduction Immigration legislation is, for the most part, introduced to regulate the movement and right to work of non-citizens. When immigration legislation provides for criminal sanctions, the immigrant population is more likely than the native population to have greater contact with the criminal justice system. Immigrants are more likely to be stopped by the police, to appear in court on charges and to be detained in prisons if immigration breaches are subject to criminal sanctions. Some breaches of immigration legislation in Ireland are punished by criminal sanctions. As this chapter shows, criminalising breaches of immigration legislation can result in the differential policing of the immigrant population. This may corrode social cohesion and efforts to integrate immigrants into the wider community. It also results in the detention of irregular immigrants in prison, which in the Irish context adds to overcrowding in prisons and may create an impression in the wider community that criminality is more widespread among the immigrant population.1 The chapter begins by considering the different issues which modern states have to consider in formulating immigration policies and the impact of EU enlargement on migration patterns. It notes the lack of unanimity within the EU about sanctions for breaches of immigration legislation, and provides details of the various alternative approaches adopted. Irish immigration legislation is detailed and particular attention is drawn to s.12 of the Immigration Act, 2004 as the majority of the foreign nationals observed who appeared before the District Court in relation to immigration offences were charged under the provisions of this legislation. The chapter draws on courtroom observations to highlight the variety of circumstances in which immigration offences are detected. IMMIGRATION OFFENCES 115 The chapter also points out that pre-trial detention has been a routine feature of immigration charges, and at times the period of pre-trial detention has been extensive. The attitude of judges to those before the court on immigration charges is explored, and the use of immigration legislation in relation to the Roma population and those claiming asylum is also considered. Procedures in relation to persons detained under the provisions of s.9(8) of the Refugee Act, 1996 are also outlined. The chapter notes that following a judicial review, the High Court has found s.12 of the Immigration Act, 2004 to be unconstitutional and it outlines amendments to the Act introduced by the Civil Law (Miscellaneous Provisions) Act, 2011. It then discusses the effect of this change. Policy Challenges Posed by Immigration Modern states must grapple with a number of complex, and at times competing, issues when it comes to immigration and border controls . Considerations of national security, national identity, supranational agreements and allegiances, human rights, and economic imperatives all impact on immigration policies and the type of measures used to deal with irregular immigrants detected at points of entry to the state, and within the state. While robust border controls are imbued with symbolic value, the borders of modern liberal democracies are in practice porous and the state’s ability to control who moves in and out of its borders is limited. Border controls are used as a means of preserving national security and controlling access to states. The state exercises its sovereignty by allowing or refusing access to its territories. An individual’s nationality has a major influence on how easily he can embark on international travel. States may require citizens of certain countries to apply for a visa before granting them access to their territories and may waive visa requirements in respect of citizens of other countries. Therefore, an individual’s freedom to travel outside his country of origin may be constrained because of inter-governmental issues rather than individual characteristics. Citizens of countries in conflict and without a recognised government may have no legitimate means of travelling outside the boundaries of their state. Border security measures and immigration policies are also shaped by economic considerations. The significance of revenue from 116 THE IRISH DISTRICT COURT overseas tourists means that immigration controls cannot be so stringent as to unduly discourage short-term visitors. They must also be flexible enough to accommodate foreign students, investors and business travellers, as all of these visitors provide a positive stimulus to the domestic economy. Some immigration may also be needed to meet labour shortages in the domestic economy. Immigration policies therefore have to balance a number of often competing...